Debangsu Basak, J.

Measures taken by a secured creditor under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) is under challenge at the instance of the writ petitioner. The writ petitioner is the owner of an immovable put up for sale by the secured creditor under the provisions of the SARFAESI Act, 2002. The writ petitioner claims that, the secured creditor did not obtain her consent when the secured creditor extended the time to put in the balance purchase price by the purchaser, in terms of Rule 9 of the Security Interest (Enforcement) Rules, 2002 and, therefore, the sale by the secured creditor of the immovable property concerned is null and void.

In support of the proposition that, Rule 9 of the Security Interest (Enforcement) Rules, 2002 is mandatory, reliance is placed on 2014 Volume 5 Supreme Court Cases page 651(J. Rajiv Subramaniyan & Anr. v. Pandiyas & Ors.) as well as 2014 Volume 5 Supreme Court Cases page 610 (Mathew Varghese v. Amritha Kumari) in this regard. Relying on 2013 Volume 10 Supreme Court Cases page 83 (G.M., Sri Siddeshwara Co-operative Bank Ltd. & Anr. v. Ikbal & Ors.) it is submitted on behalf of the writ petitioner that since the secured creditor did not obtain consent of the writ petitioner to extend the time under Rule 9 of the Security Interest (Enforcement) Rules, 2002, the sale is vitiated. It is pointed on behalf of the writ petitioner that, the auction of the immovable property concerned was held on May 17, 2014 pursuant to the sale notice dated April 11, 2014. In terms of Rule 9 of the Security Interest (Enforcement) Rules, 2002 the purchaser ought to have deposited 25 per cent of the sale price immediately, that is, on the date of the sale and that the purchaser was required to deposit the balance 75 per cent within 15 days from the date of the sale or within the period extended by consent of the parties. In the instant case, the purchaser did not deposit the balance 75 per cent within the time allowed under Rule 9 (3) of the Security Interest (Enforcement) Rules, 2002. The purchaser sought to deposit the balance 75 per cent of the purchase price after expiry of the period. The writ petitioner did not give any consent for such extension of time to deposit the purchase price. The writ petitioner is the owner of the property put up for sale. In view of the provisions of Rule 9 of the Security Interest (Enforcement) Rules, 2002 her consent for extension of time is mandatory. The writ petitioner not having given such consent, the sale is null and void.

The respondents contested the writ petition. It is submitted on behalf of the respondents that, the petition can be disposed of without inviting affidavits by treating the averments made in the petition not to be admitted by the respondents.

Learned Counsel for the respondents submits that, the writ petitioner had an alternative statutory remedy under the provisions of the SARFAESI Act, 2002. She had chosen to waive her right to approach the Debts Recovery Tribunal under the provisions of the SARFAESI Act, 2002 by not approaching the Debts Recovery Tribunal within prescribed period. The actions complained are of May 2014. Relying on the averments at paragraph 19 of the writ petition, it is submitted on behalf of the respondents that, the writ petitioner was aware that the balance of the purchase price was deposited in the month of September 2014. The writ petitioner had a remedy by way of an approach being made to the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 against the so-called extension of time. She had 45 days from September 2014 to make such application. The writ petitioner allowed the period of 45 days to prefer an appeal under Section 17 of the SARFAESI Act, 2002 to lapse. The writ petitioner having allowed such statutory period of time to elapse, the writ petitioner is deemed to have waived her right. In thi